People v. Lang

• Decision Date: 07 December 1989
• Docket Number: No. S004655,C,S004655
• Citation: 264 Cal.Rptr. 386,49 Cal.3d 991,782 P.2d 627
• Parties: , 782 P.2d 627 The PEOPLE, Plaintiff and Respondent, v. Kenneth Burton LANG, Jr., Defendant and Appellant. rim. 24257
• Court: California Supreme Court

Page 386

264 Cal.Rptr. 386

49 Cal.3d 991, 782 P.2d 627

The PEOPLE, Plaintiff and Respondent, v. Kenneth Burton LANG, Jr., Defendant and Appellant.

No. S004655, Crim. 24257.

Supreme Court of California

Dec. 7, 1989.

Rehearing Denied Feb. 1, 1990.

[782 P.2d 633] [49 Cal.3d 1001] Richard L. Phillips, under appointment by the Supreme Court, and Michele Vague for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., Edward T. Fogel, Jr., Asst. Atty. Gen., Marc E. Turchin, Thomas L. Willhite, Jr., and David F. Glassman, Deputy Attys. Gen., for plaintiff and respondent.

KAUFMAN, Justice.

This appeal is from a judgment of death under the 1978 death penalty law (Pen.Code, § 190.1 et seq.; all further statutory references are to this code unless otherwise indicated). Defendant Kenneth Burton Lang, Jr., was convicted by a jury of the first degree murder (§ 187) and robbery (§ 211) of Thurman Anderson. The jury found as a special circumstance that the murder was committed in the perpetration of a robbery (§ 190.2, subd. (a)(17)(i)) and it found that defendant used a firearm in the commission of each offense (§§ 1203.06, 12022.5). Defendant was also convicted of possession of a concealable firearm by a convicted felon (§ 12021).

We conclude that the conviction for possession of a concealable firearm by a convicted felon must be set aside but that otherwise the judgment should be affirmed in its entirety.

FACTS AND PROCEEDINGS

Thurman Anderson was shot and killed on August 18, 1983, approximately one mile from the Barrel Springs campground in the Los Padres National Forest in an area where he had told his wife he would be hunting deer. In pretrial statements to law enforcement officers, and in his testimony at trial, defendant admitted he had killed Anderson but claimed he had acted in self-defense.

The Prosecution's Case

Daniel Crothers became acquainted with defendant in Portland, Oregon, during the summer of 1983. On five or six occasions Crothers observed defendant carrying a handgun in a coat pocket or stuffed down his pants. When Crothers asked defendant, whom he knew as "Shilo," why he had the gun, defendant pointed the weapon at Crothers and said, "I'll waste any mother fucker that screws with me."

Steve Schroff met defendant when they both worked on a construction project in Atascadero during the summer of 1982. In early August of 1983 defendant telephoned Schroff and announced he was coming to California for a visit. Schroff saw defendant in Atascadero on August 15, 1983. Defendant was carrying a knapsack and a radio and Schroff was under the impression defendant had been hitchhiking. Defendant left the next day, saying he was going "down south." Defendant told Schroff he had a .32-caliber revolver for protection.

On Thursday, August 18, Thurman Anderson left his home in Camarillo at approximately 12:45 p.m. to go deer hunting. Anderson was driving an undamaged motor home. He told his wife he would return by August 21. She knew he planned to camp at Barrel Springs and to hunt across the stream from the campground area on a rolling mountain or ridge. They had visited the area in June and Anderson's wife had assisted in preparing a map showing the route from Highway 101 to the campground. According to his wife, Anderson was not in the habit of picking up hitchhikers.

At approximately 8:45 p.m. on August 18, Anderson's motor home was stopped by an officer of the California Highway Patrol because the taillights were not working. The stop occurred on Highway 101 in Atascadero. Defendant, the driver and sole occupant of the vehicle, gave his name as Kenneth Burton Stevens. Defendant said that he had no identification and that the motor home belonged to his stepfather. Defendant did not seem at all evasive or nervous.

Still driving the motor home, defendant arrived at Steve Schroff's house in Atascadero at approximately 6 p.m. the next day. Defendant told Schroff the motor home belonged to a hunter who had hired defendant as a chauffeur. Defendant said he wanted to "go out and party; just have a good time." Accompanied by Schroff's girlfriend, Terry Davis, defendant and Schroff drove to a truck stop where Schroff arranged for defendant to get $13 worth of gas and $87 cash with Anderson's credit card. Defendant signed Anderson's name on the receipt.

While in the motor home, Davis observed defendant remove a rifle from its case and show it to Schroff. She also saw defendant remove a handgun from under his seat. Defendant said, "Mr. Schroff, would you like to check out this gun?" Pointing the gun at Schroff and Davis, defendant said, "bang, bang" and laughed. Defendant drove to a motel where he had apparently rented a room. Defendant gave the room key to Schroff and told him he could stay in the room with Davis while defendant spent the night in the motor home.

After leaving Schroff and Davis at the motel, defendant went to a restaurant, arriving about 10 p.m. Defendant found an acquaintance named Mitchell Bass and they drank beer and talked for about an hour. Defendant said he wanted to drive around and party. Defendant and Bass walked to a bar nearby where Bass saw a woman he knew named Ines Tinker, who agreed to join them. Defendant drove Bass and Tinker in the motor home. After purchasing beer, defendant parked on a hill and the three sat around drinking and talking. Bass did not think that defendant seemed particularly despondent or depressed Defendant fell asleep and was awakened about 6 a.m. by Bass. After driving Tinker and Bass to their homes, defendant drove back to the motel and fell asleep in the motor home. He was awakened by Schroff at approximately 8 a.m. and drove Schroff and Davis to their respective places of employment. Schroff next saw defendant later that day after Schroff had returned home from work. Defendant said he was going by airplane to San Francisco and would leave the motor home at the airport. Defendant gave Schroff the rifle and binoculars that were in the motor home. When Schroff asked about this, defendant told Schroff not to worry, that it was "all under control," and that he "took care of it." Defendant seemed "a little jumpy" and frequently looked in the rearview mirror while driving. Defendant again used Anderson's credit card to purchase gasoline for the motor home.

on this occasion. When Bass asked how defendant had acquired the motor home, defendant said his boss allowed him to use it on weekends. Defendant showed Bass a rifle and a handgun and pointed the handgun at Bass.

Defendant was taken into custody at the San Francisco airport about 9 p.m. that evening after attempting to carry a bag containing a loaded .32-caliber revolver through a security station equipped with an X-ray screening device. Defendant said the bag belonged to his brother and he (defendant) did not know what was in it. Defendant gave his name as Thurman Anderson. Although he initially denied carrying identification, he eventually produced a wallet containing Anderson's credit card and driver's license extension (defendant had discarded the license itself, which bore Anderson's photograph).

After being transported to a nearby substation, defendant gave a birth date of January 27, 1960, and said he lived in Cazadero, which is in Sonoma County. When a computer check of Anderson's driver's license number indicated a 20-year disparity in birth dates, defendant said he was Thurman Anderson's son. The bag in which the revolver was found also held an airplane ticket to Seattle, purchased by defendant, and certain personal effects which Anderson and his wife had stored in the motor home.

On August 24, Santa Barbara police found Anderson's motor home, which now had some external damage, in the parking lot of the San Luis Obispo airport. Anderson's body was found by the police on August 26. The body was face down, with the hands under the chest, in a grove of trees in a very remote area, with an animal trail but no human trail nearby. There were no weapons or binoculars on the body. Anderson's belt was unbuckled and the top button of the pants was undone. Although Anderson normally wore a knife in a sheath on his belt when hunting, there was no knife or cartridge case on the belt and the pants pockets were empty. The immediate area was carefully searched but no shell casings, weapons, wallet, or other personal effects were found.

Anderson had been shot five times. One bullet had entered the chest, travelling horizontally at a 45-degree angle to the body's left side, and penetrated the heart. Three bullets entered behind the left ear and another in the back. Although the precise sequence of the shots could not be determined, it was likely that Anderson was first shot in the chest while standing. This shot would have caused an immediate drop in blood pressure, with loss of consciousness within five to fifteen seconds, although attempts to breathe while unconscious would have produced gurgling sounds for a few minutes. Anderson bled to death very rapidly from the wound to his heart. The remaining shots were most likely fired while Anderson was lying unconscious.

Bullets recovered from the body were consistent with bullets test-fired from the weapon recovered from defendant, although the bullets were too deformed to permit positive identification.

The Defense Case

An employee of the United States Forest Service testified that no one was at the Barrel Springs campground on Friday, August Testifying in his own behalf, defendant stated that after leaving Atascadero on a Wednesday he hitchhiked to Santa Monica, looking for work. The same evening he decided to return to Atascadero. By noon the next day he had hitchhiked to Santa Barbara. It was raining. Defendant accepted a ride from Anderson, who was driving a motor home. Anderson introduced himself as "Andy." ¹ Defendant said he was going to Atascadero. Anderson said he was...